Missouri Shelfco, Inc. v. Labor & Industrial Relations Commission

849 S.W.2d 245, 1993 Mo. App. LEXIS 327, 1993 WL 58741
CourtMissouri Court of Appeals
DecidedMarch 9, 1993
DocketNo. WD 45349
StatusPublished
Cited by3 cases

This text of 849 S.W.2d 245 (Missouri Shelfco, Inc. v. Labor & Industrial Relations Commission) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Missouri Shelfco, Inc. v. Labor & Industrial Relations Commission, 849 S.W.2d 245, 1993 Mo. App. LEXIS 327, 1993 WL 58741 (Mo. Ct. App. 1993).

Opinion

BERREY, Judge.

This is an appeal from a decision of the Missouri Labor and Industrial Relations Commission affirming a decision by the Division of Employment Security wherein the Division held that installers C. Koenig, D. Weiss, L. Rosenblatt, H. Gaterman, and all others similarly employed, are employees of appellant, Missouri Shelfco, Inc., under Missouri Employment Security Law. Appellant contends the installers are independent contractors because they are all engaged in independently established businesses, they performed their work outside of Shelfco’s place of business and Shelfco does not exercise sufficient control over their work to classify them as employees. The judgment of the Labor and Industrial Relations Commission is affirmed in part and reversed in part.

On July 29,1988, the Division of Employment Security (“Division”) issued a determination of liability in which it determined that services performed for Missouri Shelf-co, Inc. (“Shelfco”) “by C. Koenig, D. Weiss, L. Rosenblatt, H. Gaterman and all others similarly employed since August 6, 1984, constitute employment” and “[ajmounts paid for such services constitute wages.” Shelfco filed a timely appeal alleging all shelving installers are independent contractors. The Appeals Tribunal heard the appeal on July 24, 1990, and affirmed the administrative determinations of the deputy. The Tribunal based its de[247]*247termination on Shelfco’s failure to meet two of the three tests for independent contractor as specified in § 288.034.1 The Tribunal determined that Shelfco exercised control over the performance of the installers and that the installers were not engaged in an independently established trade, occupation, business or profession. The Tribunal’s determination is for the period beginning August 6, 1984, the inception date of Shelfco, to June 30, 1989, the date the statutory definition of independent contractor changed.

At the hearing, the office manager, Ms. Forister, testified as to the general operation of Shelfco. Shelfco is engaged in the installation of shelving and bath accessories in homes under construction in the St. Louis metropolitan area. In order to get work assignments, installers call Shelfco each morning they want to work. If Shelf-co needs shelving installed, the jobs are assigned on a first-call, first-assigned basis.

Shelfco provides the installers with the shelving materials, a template for measuring, and the appropriate address, but does not set a work schedule or require installation to be performed at a specific time. Installers are not required to wear special clothing. Shelfco neither supervises nor reviews the performance of the installer. Ultimate approval or acceptance of the work is up to Shelfco’s customers. Shelfco withholds thirty percent of the installers’ fees to cover any additional work that may be required on a job. If additional work is required, the original installer is contacted to complete the work. If he chooses not to, another installer is contacted and paid from the withheld amount. If no additional work is required or the original installer completes the additional work satisfactorily, the withheld amount is paid to the installer at the end of each quarter. If the installer fails to return the template, $100.00 is deducted from the thirty percent withheld.

Ms. Forister testified that most of the installers work for other persons and entities. An installer may have one of his own employees perform the installation for Shelfco. Some installers advertise in the yellow pages and some have business cards. Shelfco submitted copies of business cards of some installers. The installers “come and go” and Shelfco never knows from day to day who will call in to request work. The installers provide their own tools and transportation to the job site. If Shelfco receives “enough complaints” about an installer, that installer will not be given additional work. Shelfco does not provide paid holiday or vacation benefits to the installers, nor does it provide workers’ compensation or any other insurance benefits to the installers.

Two installers testified on behalf of Shelfco. Installer Barger testified that he is self-employed and also installs shelving for Shelfco. Barger stated that Shelfco will not hold jobs for him. “If I don’t call in by 8 o’clock I don’t get no work.” Bar-ger advertises in neighborhood shoppers and has been an installer for twenty-six years. He began installing for Shelfco in September or October 1989, when the Commission’s determination was no longer effective.

Installer Herbst testified that he is self-employed and works for Shelfco “periodically.” According to his testimony, Herbst owns his own business, does not work exclusively for Shelfco, advertises in the yellow pages and has his own business card. Herbst performed services for Shelfco during the relevant time period. Herbst was unable to say what percentage of his income was derived from Shelfco. Shelfco contends that these two installers are representative of the class of installers who performed services for appellant during the time period in question.

Shelfco appealed the decision of the Appeals Tribunal which the Labor and Industrial Relations Commission (“Commission”) affirmed, whereupon Shelfco filed a petition for review. Pursuant to Shelfco’s petition for review, the Circuit Court of Cole County, Missouri determined that the Commission’s decision is “supported by competent and substantial evidence and is correct [248]*248as to the law” and entered a judgment affirming the decision. This appeal followed, after which this court handed down its opinion following the holding in McDonald v. Labor and Indus. Relations Comm’n, 789 S.W.2d 69 (Mo.App.1990), as to “all others similarly employed.” Subsequently, respondents applied for and were granted transfer to the Supreme Court of Missouri. Upon handing down its opinion in Burns v. Labor & Indus. Relations Comm’n, 845 S.W.2d 553 (Mo. banc 1993), addressing identical issues, the Supreme Court retransferred the case to this court for determination in light of its holding in Bums.

On appeal, this court reviews the decision of the Commission, not the judgment of the circuit court. Westerheide Tobacco & Cigar Co. v. Labor and Indus. Relations Comm’n, 723 S.W.2d 936, 938 (Mo.App.1987). We review that decision with the following standards in mind. If supported by competent and substantial evidence and absent fraud, the findings of the Commission as to the facts are conclusive. § 288.210. It is the administrative tribunal’s function to determine credibility of the witnesses. Edmonds v. McNeal, 596 S.W.2d 403, 408 (Mo. banc 1980). This court may not substitute its judgment on the evidence nor may we set aside an administrative decision unless it is clearly contrary to the overwhelming weight of the evidence. Pulitzer Publishing Co. v. Labor and Indus. Relations Comm’n, 596 S.W.2d 413, 417 (Mo. banc 1980).

Employers are required to make specified payments during each calendar year to establish a fund for payment of unemployment compensation to qualified individuals. § 288.090.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Francisco Morfin v. Angel Werdehausen and Family Support Division
448 S.W.3d 343 (Missouri Court of Appeals, 2014)
National Resort Mart, Inc. v. Hitchcock
88 S.W.3d 459 (Missouri Court of Appeals, 2002)
Edward Lowe Industries, Inc. v. Missouri Division of Employment Security
865 S.W.2d 855 (Missouri Court of Appeals, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
849 S.W.2d 245, 1993 Mo. App. LEXIS 327, 1993 WL 58741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/missouri-shelfco-inc-v-labor-industrial-relations-commission-moctapp-1993.